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Case against iPhone eavesdropper moves forward

Stepson who used iPhone to record conversation about dying mother’s will may be liable for invasion of privacy and infliction of emotional distress.

This past summer the case against a man accused of using his iPhone to surreptitiously record a family conversation about his dying mother’s will got some attention when the court dismissed the stepfather-widower’s claim for violation of the Electronic Communications Privacy Act.

But the dismissal of that case was not the end of the story. Plaintiff had filed a separate lawsuit, claiming, among other things, invasion of privacy (by intrusion upon seclusion) and intentional infliction of emotional distress. Defendants (the allegedly eavesdropping iPhone user and his brother) moved to dismiss the invasion of privacy and emotional distress claims. The court denied the motion.

Plaintiff alleged that four days before his wife (defendants’ mother) died, defendants and some other family members came over to the house to discuss the mother’s will. Unbeknown to plaintiff, one of the defendant brothers allegedly used his iPhone to secretly record the conversation. In the subsequent litigation over the mother’s estate, the stepsons attempted to use an allegedly altered version of the recording as evidence.

The court found that the act of secretly recording the conversation could constitute invasion of privacy. Whether it actually happened the way plaintiff claimed will be decided later by a jury. But the judge found that a jury was entitled to make that determination. Plaintiff’s claims that defendants surreptitiously recorded an intimate conversation about a family member’s will qualified as an offensive intentional intrusion in private affairs that could be highly offensive to a reasonable person.

As for the intentional infliction of emotional distress claim, the court found that defendants’ alleged conduct “exceed[ed] all bounds usually tolerated by decent society.” As with the invasion of privacy claim, the question of liability will go to a jury (unless the case settles, of course.)

Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).